FILED
MAR 16 2011
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
IN THE UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SAM BESS, Case No. 09-15307
Plaintiff - Appellee, D. C. No. 2:07-cv-1989 JAM JFM
v.
MATTHEW CATE; DAVID SHAW,
Defendants - Appellants
and
RODERICK HICKMAN; JEANNE S.
WOODFORD; JOHN DOVEY; SCOTT
KERNAN; MARTIN HOSHINO,
Defendants.
SAM BESS, Case No. 10-15990
Plaintiff - Appellant, D. C. No. 2:07-cv-1989 JAM JFM
v.
MEMORANDUM *
MATTHEW CATE; DAVID SHAW;
RODERICK HICKMAN; JEANNE S.
WOODFORD; JOHN DOVEY; SCOTT
KERNAN; MARTIN HOSHINO,
Defendants-Appellees.
* This disposition is not appropriate for publication and may not be cited to or by
the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, Presiding
Argued and Submitted February 16, 2011
San Francisco, California
*
Before: Schroeder and Thomas, Circuit Judges, and Conti, District Judge *
Plaintiff Sam Bess appeals the order of the district court granting summary
judgment to Defendants on his First Amendment retaliation claim, Fourteenth
Amendment due process claims, and Racketeer Influenced and Corrupt Organizations
(“RICO”) Act claims. Plaintiff also appeals the orders of the district court striking the
declaration of his expert witness and denying his motion to continue summary judgment
proceedings. We affirm the decisions of the district court.
In a separate appeal from the same underlying dispute, Defendants Matthew Cate
and David Shaw appeal the order of the district court requiring them to produce
**
The Honorable Samuel Conti, Senior District Judge for the Northern District of
California, sitting by designation.
privileged documents and awarding expenses in favor of Plaintiff. We do not address the
appeal of the order to produce privileged documents because that issue is moot in light of
our affirmation of summary judgment in the underlying dispute.1 We affirm the order of
the district court awarding attorney's fees to Plaintiff.
The district court properly granted summary judgment in favor of Defendants on
Plaintiff's claim that they retaliated against him for exposing the alleged use of
peacekeepers in California prisons. Plaintiff's complaints to Defendant Kernan were
made pursuant to his job duties as a correctional officer and were therefore not protected
by the First Amendment. Freitag v. Ayers, 468 F.3d 528, 546 (9th Cir. 2006). There was
no evidence in the record that Defendants had knowledge of Plaintiff's protected speech
at the time of the actions of which Plaintiff complains, much less that they acted in
1
Accordingly, Defendants Cate and Shaw’s outstanding Motion for Judicial
Notice, which asks the Court to take notice of various statutes and a protective
order in support of Defendants’ argument that the district court erred in ordering
them to produce privileged documents, is also denied as moot. See Appeal No. 09-
15307, Docket No. 27.
retaliation for Plaintiff's protected speech. See Keyser v. Sacramento City Unified Sch.
Dist., 265 F.3d 741, 751 (9th Cir. 2001).
The district court properly granted summary judgment in favor of Defendants on
Plaintiff's due process claims. There was no showing that Plaintiff was deprived of a
protected property interest. Plaintiff was not subjected to constructive discharge.
Stiesberg v. Cal., 80 F.3d 353, 355 (9th Cir. 1996). Plaintiff's claims that he was
deprived of numerous liberty interests also fail because: (1) there is no evidence in the
record that Defendants sought to prevent Plaintiff from exercising his whistleblower
rights under California law; (2) there is no evidence in the record that the Office of the
Inspector General declined to investigate Plaintiff's complaints because of Plaintiff
having exercised his constitutional rights; (3) there is no authority supporting Plaintiff's
claim that Cal. Code Regs. tit. 8, § 3202(a)(3) required Defendants to disclose the
contents of threat assessments; (4) there is no evidence that Defendants violated
Plaintiff's First Amendment rights; and (5) there is no evidence that Defendants' actions
impaired Plaintiff's reputation for honesty or morality.
The district court properly granted summary judgment to Defendants on Plaintiff's
RICO Act claims because Plaintiff's alleged injury to his business or property was
proximately caused by a personnel decision (his transfer), not by racketeering activity.
He therefore lacks RICO standing. Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th
Cir. 1990) (holding that employee fired for refusing to participate in cover-up of illegal
scheme lacked standing to assert civil RICO claim against employer).
The district court did not abuse its discretion by striking the declaration of
Plaintiff's expert witness. This Court affords “particularly wide latitude to the district
court’s discretion to issue sanctions under Rule 37(c)(1).” Yeti by Molly, Ltd. v.
Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). There was ample support
for the district court's finding that numerous portions of the declaration exceeded the
scope of the expert's report in violation of Federal Rule of Civil Procedure 26(a)(2)(B).2
Federal Rule of Civil Procedure 37(c)(1) forbids the use at trial or on a motion of any
information not properly disclosed under Rule 26(a) unless the failure to disclose is
substantially justified or harmless. Id. The record indicates that the failure to disclose
was not justified or harmless in this case, and the district court's decision to exclude the
declaration was therefore proper.
The district court did not abuse its discretion by denying Plaintiff's motion to
continue summary judgment proceedings pursuant to Federal Rule of Civil Procedure
56(f). Plaintiff failed to set forth the specific facts he hoped to elicit from further
discovery, establish a basis for believing those facts existed, or explain how those facts
were essential to opposing summary judgment. Family Home Fin. Ctr., Inc. v. Fed.
Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008).
2
The Court has considered Plaintiff's outstanding Motion to Supplement the
Record. Appeal No. 10-15990, Docket No. 8. The Motion seeks to supplement
the record with excerpts of expert witness Ana Ramirez-Palmer's deposition
testimony. As the excerpts in question were already quoted in Plaintiff's opening
brief, they have been considered by the Court in reaching this ruling. Accordingly,
the Motion to Supplement is denied as moot.
Finally, the district court did not abuse its discretion by affirming the magistrate's
award of attorney's fees and costs to Plaintiff based on Defendants Cate and Shaw's
insufficient responses to discovery requests. A district court has great latitude in
imposing sanctions for discovery abuse. Dahl v. City of Huntington Beach, 84 F.3d 363,
367 (9th Cir. 1996). There was ample support for the magistrate judge's order. Despite
well-established law that parties seeking to invoke privileges are not permitted to provide
mere blanket objections to discovery requests, Defendants Cate and Shaw lodged blanket
objections and failed to "provide sufficient information to enable other parties to evaluate
the applicability of the claimed privilege or protection." Burlington N. & Santa Fe Ry. v.
Kapsner, 408 F.3d 1142, 1148 (9th Cir. 2005) (quoting Fed. R. Civ. P. 26(b)(5) advisory
committee note (1993 Amendments)). The award of attorney's fees and costs to Plaintiff
was well within the magistrate judge's discretion, and the ratification of the magistrate's
decision was well within the discretion of the district court. Grimes v. City and Cnty. of
S.F., 951 F.2d 236, 241 (9th Cir. 1991) (affirming district court's ratification of
magistrate judge's award of attorney’s fees and other monetary sanctions against the City
of San Francisco for failure to respond to discovery requests).
AFFIRMED.